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Since Sept. 8, Turkey has been the scene of an unprecedented wave of mob attacks primarily targeting its citizens of Kurdish origin and their property as well as numerous newspapers and political party offices. According to officials with the People’s Democratic Party (HDP), a left-wing political party in Turkey, their party members and offices were the sole target of more than 400 attacks in the span of just one week. Outraged by attacks by the Kurdistan Workers’ Party (PKK), a militant Kurdish nationalist group, targeting Turkish military and police officers in Turkey’s southeast, the overarching motive of the attacks appears to be to retaliate indiscriminately against those perceived to be representing the “Kurdish” identity in the public. The widespread attacks had varying forms: burning and destruction of property, beatings, public humiliation of individuals and machete attacks. Although most of the assaults did not result in loss of life, there have been also reports of several killings, whose true motives have yet to be confirmed.

In the face of a severe threat of large-scale violence, government officials did not condemn the events but only asked the crowds to stop their aggression. Meanwhile a week-long curfew was effective in the town of Cizre where the military had an intense confrontation with PKK guerillas. According to some reports, 21 civilians died during the conflict where the army used heavy weapons to indiscriminately bombard civilian districts, which potentially aggravated the unintended casualties.

Most of the mob attacks followed a predictable pattern, and the police had the means to at least minimize the resulting damage, if not wholly prevent it in many instances. Many of these angry groups use social media for coordination and make public calls online for others to join. These communications – which often give away the prospective targets – are open to the view of the public and the security forces.

The hesitation of the security forces and the administration, coupled with President Recep Tayyip Erdogan’s efforts at politically capitalizing from the polarization of the society before the November elections paints a disturbing picture. When such alarming conditions indicate an absolute disregard by a state towards the lives of its own citizens, the state’s potential culpability in the unfolding events, from incompetence to one of simple recklessness or outright complicity in crime, must be investigated.

TURKEY’S DUTY TO PROTECT ITS CITIZENS UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS

Turkey is familiar with this type of situation. During the 1990s, when the conflict between the Turkish state and the PKK was particularly intense, the European Court of Human Rights found on many occasions that Turkey had violated the European Convention on Human Rights (ECHR) in a series of cases concerning the susceptible killings of Turkish citizens of Kurdish origin. Most of these cases related to situations where Turkey had failed to exercise the proper functions of a state in preventing and investigating the relevant killings.

Article 2 of the ECHR defines the “right to life,” one of the most fundamental principles set forth in the Convention, and it requires member states not only to refrain from the unlawful taking of life, but also to protect the lives of its citizens. Thus, a government can be held liable under the ECHR for acts perpetrated by private individuals if the government is found to have neglected its positive obligations to protect the right to life.

In the landmark case of Osman v. U.K., the court ruled for the first time that states have a positive obligation to protect the right to life. This involves both prevention and investigation of the crimes targeting the lives of citizens. Although most of the past cases where Turkey was found to violate the ECHR concerned the state’s failure to investigate the committed crimes, a duty to prevent continues to be equally important for a criminal justice system to serve its function of deterrence.

According to the standard set forth by the court in Osman v. U.K., once it is established that the authorities knew or should have known about the existence of a “real and immediate risk to the life of an identified individual” caused by the potentially criminal acts of private individuals, and failed to take reasonable actions to stop that risk, a state will be deemed in violation of its obligations under the ECHR.

A killing is not necessary to trigger an obligation under the ECHR. States’ positive obligations under ECHR are interpreted in an expansive fashion, and they must work to preserve human dignity in general. A failure to protect citizens against inhuman and degrading treatment by private parties may as well constitute a breach of Article 3, which prohibits “torture or . . . inhuman or degrading treatment or punishment”. For example, in Moldovan and others v. Romania, individuals of Roma origin were lynched by an angry mob following a bar fight, and their houses and property were burned. In this case, the court found that the ECHR required “States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals.”

AVENUES FOR JUSTICE

For a claim to be admissible before the European Court of Human Rights, the applicant must first exhaust all local remedies available under the domestic law. Indeed, Turkey’s domestic law provides numerous remedies to those who have suffered from these abuses in the form of civil and criminal actions. However, the court may still find an application admissible if it deems the local remedies as ineffective in providing just reparation. The consistent deterioration of the rule of law in Turkey, resulting from the political pressure on the judiciary as reflected in numerous politically motivated prosecutions, is well-documented. Furthermore, the widespread and systemic nature of the government misconduct makes fair and just prosecution of each and every individual involved in these crimes a very distant, if not impossible, prospect. Hence, under well-established jurisprudence, if a case reaches the court, Turkey may very likely to be found to have violated the ECHR for failing to meet its obligations in protecting its citizens during the September 2015 attacks.

Meric Sar is a Staff Writer for Rights Wire.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

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The views expressed on this blog remain those of the individual authors and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School or Fordham University.

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